IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
TEBOGO STEVEN KHUZELA
JAPPIES BOIKIE MOKISI
and
THE STATE
Not reportable
Case no: A 149/2024
FIRST APPELLANT
SECOND APPELLANT
RESPONDENT
Neutral citation: Khuzela and Another v The State (A 149/2024) [2025] ZAFSHC 264
(28 August 2025)
Coram: Daffue et Opperman JJ
Heard: 25 August 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 16h00 on 28 August 2025.
Summary: Appeals against convictions and sentences - whether the State witnesses'
identification of the perpetrators known to them was reliable and credible - no
misdirection by court a quo - convictions upheld - no substantial and compelling
circumstances to deviate from life sentences imposed.
2
ORDER
1 Condonation is granted for the late filing of the notice of appeal.
2 The appeals of both appellants against their convictions and sentences are
dismissed.
Daffue J {Opperman J concurring)
Introduction
JUDGMENT
[1] In November 2018 gangsterism yet again raised its ugly head in Mangaung . On
16 November 2018 a former gang member was brutally killed by a mob of gangsters in
the face of his mother and niece. His sin? He terminated his gang membership earlier
and in doing so imposed a life sentence onto himself. The gang members that took centre
stage in the events are two former members of the BTK gang (BTK), as well as three of
their erstwhile colleagues and co-members. BTK is an acronym for Born To Kill.
The dramatis personae
[2] The dramatis personae during the dramatic events of 16 November 2018 and
thereafter are:
a. a former gang member, Sella Petrus Magwaga, who was brutally killed by a mob
outside his RDP house during the night, herein later referred to as 'the deceased';
b. Baptista Shemane (Baptista, as he was referred to in the trial and with no
disrespect to him), a former gang member and a friend of the deceased who stayed in a
shack behind the deceased's house;
c. Palesa Rakosa (Palesa, as she was referred to in the trial and with no disrespect
to her), the life partner of Baptista and a niece of the deceased;
d. the three accused persons and BTK gang members, Teboho Stephen Khuzela,
Morenanyane Jeffrey Senoge and Jappies Boikie Mokisi;
e. the investigating officer, Warrant Officer Morena Machalotsa, to whom the identity
3
of the accused persons was communicated and who eventually arrested them; and
f. Warrant Officer JC Lombaard, a Crime Information Management Officer, who
testified in aggravation pertaining to the purpose and activities of BTK .
The charges and ultimate convictions
[3] The three accused were charged with three crimes, to wit:
a. housebreaking with the intent to commit a crime unknown to the prosecutor;
b. robbery with aggravating circumstances; and
c. murder.
[4] On 17 March 2020 they were convicted as charged. The learned regional
magistrate found that the murder was planned and premeditated; therefore, s 51 (1) of the
Criminal Law Amendment Act 105 of the 1997 (Act 105 of 1997) became applicable.
[5] On 19 May 2020 the accused were sentenced to 20 years' imprisonment on counts
1 and 2, these having been taken together for purpose of sentence. They were sentenced
to life imprisonment in respect of murder.
The appeal
[6] On 19 June 2024 the accused persons filed a notice of appeal, ie four years late.
In terms hereof they appealed against the convictions and sentences in respect of all
three counts. They had an automatic right of appeal in respect of the sentences of life
imprisonment in respect of count 3,1 but they failed to obtain leave from the learned
regional magistrate to appeal in respect of counts 1 and 2. Notwithstanding the automatic
right of appeal in respect of count 3, the notice of appeal has been filed hopelessly out of
time. An application for condonation was filed. Scant reasons were submitted and no
reasonable explanations were provided, but in order to obtain finality, the appeals should
be considered on the merits.
[7] Khuzela and Mokisi, cited as the first and second appellants respectively in the
parties' heads of argument, are the only appellants before us. The whereabouts of
Senoge, the second accused, cited as second appellant in the notice of appeal, are
unknown. Ms Kruger mentioned during oral argument that legal aid had not been granted
unknown. Ms Kruger mentioned during oral argument that legal aid had not been granted
1 Section 309(1)(a) of the Criminal Procedure Act 51 of 1977.
4
to him and that she did not hold any instructions from him.
[8] The grounds of appeal can be summarised as follows:
a. the learned regional magistrate erred in finding that the State's witnesses properly
identified the appellants as members of the mob that killed the deceased;
b. the learned regional magistrate erred in rejecting the appellants' versions as false
and improbable; and
c. the learned regional magistrate erred in making a credibility finding in favour of the
State's witnesses against the appellants.
Evaluation of the court a quo's findings and the submissions on behalf of the parties
[9] The only relevant consideration in this appeal is whether the learned magistrate
was correct in accepting the State witnesses' versions about the identity of the
perpetrators. I shall return thereto in a moment.
[1 O] A court of appeal's powers to interfere with the findings of the trial court on identity
and credibility are limited. In S v Francis2 the Supreme Court of Appeal relied on the locus
classicus, R v Dhlumayo and Another3 and held as follows:
This Court's powers to interfere on appeal with the findings of fact of a trial Court are limited (R v
Dh/umayo and Another 1948 (2) SA 677 (A)). Accused No S's complaint is that the trial Court
failed to evaluate D's evidence properly. It is not suggested that the Court misdirected itself in any
respect. In the absence of any misdirection the trial Court's conclusion, including its acceptance
of D's evidence, is presumed to be correct. In order to succeed on appeal accused No 5 must
therefore convince us on adequate grounds that the trial Court was wrong in accepting D's
evidence -a reasonable doubt will not suffice to justify interference with its findings (R v Dh/umayo
(supra); Taljaard v Sentrale Raad vir Kooperatiewe Assuransie Bpk 1974 (2) SA 450 E (A) at
452A-B). Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising
a witness, it is only in exceptional cases that this Court will be entitled to interfere with a trial
Court's evaluation of oral testimony (S v Robinson and Others 1968 (1) SA 666 (A) at 675G-H).'
[11] Therefore, it is trite that a court of appeal is not at liberty to depart from the trial
court's findings of fact and credibility, unless they are vitiated by irregularity, or unless an
examination of the record of evidence reveals that those findings are patently wrong. The
2 S v Francis 1991 (1) SACR 198 (A) at 204c-d.
3 R v Dhlumayo and Another 1948 (2) SA 677 (A).
5
trial court's findings of fact and credibility are presumed to be correct. The trial court had
the advantage of seeing and hearing the witnesses and is therefore usually in the best
position to determine where the truth lies. The State did not have to prove the guilt of the
accused persons beyond the shadow of a doubt.4
[12] It is accepted that even credible witnesses may make mistakes pertaining to their
observations and identification of perpetrators. The trite principles set out in S v Mthetwa5
(Mthetwa) are still applied today. Baptista and Palesa experienced the dreadful events
during the killing of the deceased from different angles. It is accepted that visibility cannot
be described as ideal. The mobility of the crime scene and a mob in an excess of 20
people would make it difficult to identify the perpetrators. The learned regional magistrate
duly accepted this and considered the evidence with caution. In my view, the acceptance
of Baptista and Palesa's versions that they had sufficient opportunity to make a proper
identification cannot be faulted, notwithstanding their evidence that the closest street mast
light did not function properly all the time. Furthermore, Palesa observed the appellants
whilst they were in the RDP house whilst the lights in the house were switched on. An
aspect that confirms the veracity of their identification is contained in their witness
statements. This cannot be ignored. These statements were made within a few hours
after the commission of the crimes. The statements were handed in by the defence legal
representative in order to show their different versions. More about the difference later
herein. In their statements both witnesses referred to the observed perpetrators by their
nicknames. This allowed the police to start searching for them soon, but by then they had
fled from their residences. They could only be apprehended months later as the
investigating officer testified.
investigating officer testified.
[13] The most important aspect to be considered in regard to identification in this case
is the witnesses' prior knowledge of the perpetrators identified by them. The court
acknowledged in Mthetwa that such prior knowledge is one of the factors to be
considered. Recently, the Supreme Court of Appeal evaluated prior knowledge of a
perpetrator in Abdullah v S6 and commented as follows:
'[13] ... Much was made of the fact that Mr Carelse only had between 2-4 seconds in which to
~ S v Ntsele 1998 (2) SACR 178 (SCA) at 182b-h.
5 S v Mthetwa 1972 (3) SA 766 (A) at 768A-C.
6 Abdullah v S [2022) ZASCA 33 para 13; See also Arendse v S [2015) ZASCA 131 para 10 and Machi v
The State [2021) ZASCA 106 para 27.
6
observe the appellant. Had the appellant been a stranger to him, this could have been a significant
factor. However, when seeing a person who is known to you, it is not a process of observation
that takes place but rather one of recognition. This is a different cognitive process which plays a
vital role in our everyday social interaction. The time necessary to recognise a known face as
opposed to identifying a person for the first time, is very different. It has been recognised by our
courts that where a witness knows the person sought to be identified, or has seen him frequently,
the identification is likely to be accurate.' (Emphasis added.)
[14) This is not a case of a victim who had merely a fleeting moment to observe an
unknown robber, taking their property at gunpoint only to vanish instantaneously. Baptista
was a member of BTK. He knew the accused for about two years. They were friends who
gathered and socialised on a regular basis. Surely it would be easy for a gang member,
either former or present, to identify his co-members in situations that are less than ideal
and when it might be impossible for third parties, not knowing the perpetrators, to identify
them. Palesa, being the life partner of Baptista, also saw Khuzela and Mokisi, the two
appellants, frequently at her uncle's RDP house, situated just in front of the shack where
she and Baptista were staying. Both of them would visit the uncle and smoke together.
She denied in cross-examination Khuzela's version that he only knew the deceased
because he (the deceased) was selling cakes/cookies, which were later referred to as
'space cookies', ie cakes stuffed with drugs, although she admitted that a tuckshop was
run from the premises by Ethiopians.
[15) Baptista and Palesa corroborated each other on crucial aspects. The brutality of
the attack, the number of people who participated in the attack and the different weapons
used are demonstrated by the admitted medico-legal post-mortem examination report
used are demonstrated by the admitted medico-legal post-mortem examination report
prepared by Dr Jansen van Vuuren. His chief post-mortem findings were:
'multiple sharp, and sharp-blunt injuries including;
a. Head injury with stab wound and subsequent sub arachnoid haemorrhage.
b. Chest injury with stab wound to the heart through the septum of the heart.
i. Minimal haemorrhage was noted with this and other internal injuries.
c. Abdominal injury with multiple stab wounds and subsequent injury to the liver and
intestines.'
Over and above the aforesaid chief post-mortem findings, numerous other stab wounds,
cuts, puncture wounds, lacerations and bruises were documented, indicating that the
injuries were caused by different weapons.
7
[16] It is clear from the evidence of Baptista and Palesa that the mob that was looking
for Baptista, but could not find him as he was hiding behind a door, eventually killed the
deceased. These people were 'baying for their blood' as Baptista testified. His version
could not be denied. When he and the deceased resigned from BTK and removed their
gang tattoos, members of the BTK gang started planning to kill them. It was not denied
that once a member of BTK, always a member thereof.
[17] One aspect not pertinently dealt with by the learned regional magistrate in her
judgment is the differences between the witness statements and the viva voce evidence
of Baptista and Palesa. In S v Mafaladiso en Andere7 the Supreme Court of Appeal held
that where there are material differences between the witness' evidence and their prior
statement, the final task of the judge is to weigh up the previous statement against viva
voce evidence, to put all the evidence together and to decide which is reliable and whether
the truth has been told despite any shortcomings. This means that the court is enjoined
to consider the totality of the evidence to ascertain if the truth has been told. The
statements were taken within hours after the traumatic event. The State witnesses were
in a severe state of anxiety and probably still confused. It is also possible that they
conveyed information received from one another or even the deceased's mother who also
witnesses the killing, without actually observing everything. However, there is no reason
to reject their evidence tendered in the trial. Also, if they wanted to team up to falsely
incriminate the accused persons, they would have ensured that Palesa identify accused
2 as one of the attackers. Instead, she did not do it and explained that he was not known
to her before the incident.
[18] Warrant Officer Machalotsa testified that the three accused persons admitted to
being BTK gang members. However, when they testified, they denied that. He explained
being BTK gang members. However, when they testified, they denied that. He explained
that he was informed of the identity and residential addresses of the accused persons,
but notwithstanding several visits to their homes, he only managed to arrest accused 1
and 2 on 25 February 2019 and accused 3 in April 2019. The accused persons never
presented him with information about their alleged alibis as claimed by them during his
cross-examination. There is no reason to disbelieve him.
[19] The three accused persons relied on alibis during the trial. It is accepted that they
7 S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) at 593e-594h.
8
had a right to remain silent and that it was not necessary to inform Warrant Officer
Machalotsa of their alibis at the time of their arrest. They were also within their rights to
remain silent during the plea proceedings, but such silence had its consequences and
could eventually be duly considered by the learned regional magistrate during the
evaluation of the evidence. This is such a case. The right to remain silent and the
disclosure of an alibi defence were thoroughly discussed and considered in S v Thebus
and Another. 8 Moseneke J stated the following:9
'A distinction may properly be made between an inference of guilt from silence and a credibility
finding connected with the election of an accused person to remain silent.'
He continued:10
The late disclosure of an alibi is one of the factors to be taken into account in evaluating the
evidence of the alibi. Standing alone it does not justify an inference of guilt. Secondly, it is a factor
which is only taken into consideration in determining the weight to be placed on the evidence of
the alibi.'
Finally, the learned justice concluded:11
'The failure to disclose an alibi timeously is therefore not a neutral factor. It may have
consequences and can legitimately be taken into account in evaluating the evidence as a whole.
In deciding what, if any, those consequences are, it is relevant to have regard to the evidence of
the accused, taken together with any explanation offered by him or her for failing to disclose the
alibi timeously within the factual context of the evidence as a whole.'
[20] On Khuzela, the first appellant's version, he and Senoge, the second accused who
is not an appellant before the court, attended a party at a certain Tseliso's place. After
having received a call that his house has been attacked, they went home. Having
discovered the damage, they noticed police vehicles coming from the deceased's home.
They stopped these vehicles and reported the loss to the police. At that stage they were
They stopped these vehicles and reported the loss to the police. At that stage they were
informed by the police that they (the police) were on the hunt for a group of murder
suspects who had just killed a person. The police advised them to file their complaint at
the police station which was done by one Lerato. Neither Lerato, nor any of the people
who also attended the party that night, testified on their behalf and no proof has been
provided of a case docket being opened.
8 S v Thebus and Another 2003 (6) SA 505 (CC) at 533 and further.
9 Ibid para 59.
10 Ibid para 67.
11 Ibid para 68.
9
[21] All three accused people and the appellants in this appeal in particular, changed
their versions during the hearing more than once. They eventually confirmed knowing the
deceased and visiting the premises. Palesa earlier denied their version that they had
bought 'space cookies' from the deceased, but it is evident that a tuckshop was run from
the premises by Ethiopians. Their versions that they did not try to evade being arrested
are false in light of their identification communicated to the police hours after the murder.
The evidence of the investigating officer is clear and supported by the objective facts.
[22] I am satisfied that the learned regional magistrate has properly evaluated the
evidence and carefully examined the merits and demerits of the State and defence cases
in line with the following principles summarised by Heher AJA in S v Chaba/a/a:12
'The correct approach is to weigh up all the elements which point towards the guilt of the accused
against all those which are indicative of his innocence, taking proper account of inherent strengths
and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide
whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt
about the accused's guilt.'
[23] Consequently, there is no reason to interfere with the learned regional magistrate's
judgment. The appeals against convictions should be dismissed.
[24] There is also no reason to interfere with the sentences of life imprisonment. For
what it is worth, bearing in mind that no leave to appeal was granted in respect thereof,
there is also no reason to interfere with the sentences of 20 years' imprisonment imposed
in respect of counts 1 and 2.
[25] Warrant Officer Lombaard's uncontested evidence in aggravation is an eye
opener. He has studied the BK gang activities and testified in many cases involving its
gang members . He confirmed that once a gang member resigns from BTK, he shall be
gang members . He confirmed that once a gang member resigns from BTK, he shall be
killed as the resignation is seen as humiliating the gang. In most cases, large numbers of
members will be organised to kill the former member. Usually, the person will not be shot
with a gun, which is often an instantaneous death where not much blood is spilled. The
victim must be killed by infliction of multiple stab wounds. Blood must be drawn. This is
exactly what occurred in this case. A barbaric, brutal killing took place. A mob was
12 S v Chabalala 2003 (1) SACR 134 (SCA) at 139i-j.
10
involved, including the appellants.
[26) In S v PB , 13• in line with S v Matyityi, 14 the Supreme Court of Appeal emphasised
that prescribed minimum sentences should not be departed from lightly, or for flimsy
reasons. I am conscious that life imprisonment is the ultimate penalty that the courts can
impose and should not be imposed lightly, but there is no reason to interfere with the
discretion exercised by the learned regional magistrate. They deserve the ultimate
penalty. The personal circumstances of the appellants are not out of the ordinary and
there is no reason to accept that these either individually, or cumulatively, should be
regarded as substantial and compelling circumstances. The barbaric killing by a mob of
people which was clearly planned and premeditated deserves one sentence only and that
is life imprisonment. Bearing in mind the seriousness of the offences, it is required that
the elements of retribution and deterrence should come to the fore and that the
rehabilitation of the appellants should be accorded a smaller role as emphasised by the
Supreme Court of Appeal in S v Kekana.15
Order
1 Condonation is granted for the late filing of the notice of appeaC
'
2 The appeals of both appellants against their convictions and sentences are
dismissed.
I concur.
13 S v PB 2013 (2) SACR 533 (SCA) para 20.
14 S v Matyityi 2011 (1) SACR 40 (SCA) para 23.
\
JP DAFFUE
JUDGE OF THE HIGH COURT
M LOPPERMAN
JUDGE OF THE HIGH COURT
15 Kekana v S (37/2018) (2018] ZASCA 148 (31 October 2018); S v Kekana 2019 (1) SACR 1 {SCA) paras
39-42.
Appearances
For the Appellants:
Instructed by:
For the Respondent:
Instructed by:
11
S Kruger
(the heads having been drafted by PL Van der Merwe)
Bloemfontein Justice Centre, Bloemfontein.
S Tunzi
(the heads having been drafted by S Mdazuka)
Director of Public Prosecutions, Bloemfontein.